States of Emergency - Centre for Policy Alternatives

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The court’s reasoning with regard to the constitutionality of, and rights available under the ICCPR and the First Optional Protocol rest on two principal arguments, which are both founded on the court’s interpretation of sovereignty and the separation of powers as laid down in Articles 3 and 4 of the constitution. These require separate analysis. First, with regard to the ICCPR itself, the Court found that the executive power of the people as exercised by the President under Article 33 (f) read with Articles 3 and 4 (b) of the Constitution empowered the President to represent Sri Lanka abroad and under customary international law to enter into treaties, the contents of which must be consistent with the Constitution and the laws of Sri Lanka. The court found that the accession to the ICCPR was a valid exercise of executive power and found its contents consistent with the Constitution of Sri Lanka. Citing the dualist tradition of Sri Lanka with regard to international law, however, the court took the position that no enforceable rights as a matter of domestic law could automatically Llow from the accession in the absence of enabling legislation enacted by Parliament to give effect to the ICCPR. The court deemed it presumable that speciLic legislation to give effect to the ICCPR in domestic law was not enacted because the government considered the fundamental rights declared and recognised in the Constitution as adequate fulLilment of Sri Lanka’s treaty obligations. Secondly, with regard to the declaration made by the President in 1997 acceding to the First Optional Protocol, the court found that this was unconstitutional for two reasons. Firstly, the declaration amounted to the conferment of public law rights on individuals because it recognised that rights under the Covenant were directly available to persons within the jurisdiction of Sri Lanka, and 226
further, conferred a right on individuals to address communications to the Human Rights Committee alleging violation of Covenant rights. In the view of the court, this was a purported legislative act by the President in excess of powers, because the creation of rights could only be done through legislation passed by Parliament. Under Article 76 read with Articles 3 and 4 (b) of the Constitution, Parliament cannot alienate its legislative power, except to make provision for the President to promulgate emergency regulations. Secondly, the court was of the view that the declaration of accession to the First Optional Protocol recognising the competence of the Human Rights Committee to receive and consider communications from individuals was a conferment a judicial power (and therefore unconstitutional alienation of sovereignty) on the Human Rights Committee, in contravention of Article 3 read Articles 4 (c) and 105 (1) of the Constitution. The court also offered its own interpretation of Article 2 of the ICCPR, stressing the right of a State Party to give effect to the rights of the Covenant through law or other measures according to its own constitutional processes. In this way, the court adopted the traditional approach to State sovereignty vis‐à‐vis the province of international law and Lirmly subordinated the ICCPR to State jurisdiction, asserting the right of States to determine the extent and manner in which ICCPR rights were exercisable by individuals. In doing so, the court’s reasoning is conspicuously at odds with the prevailing doctrine of international human rights that accords, as a general proposition, primacy to human rights in relation to State sovereignty. To the extent that this judgment is one of major constitutional signiLicance, it is clear that the conservative and unimaginative constitutional doctrine of the Supreme Court is one based on State sovereignty and command theory positivism, rather than on rights‐based constitutionalism. The refusal to 227
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A State of Permanent Crisis Constit
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This book is dedicated to J.S. Tiss
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3.   The Neo‐Roman Cons
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6. Fundamental Rights  ....
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security has been prioritised and t
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The year 2008 also marks the twenty
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nationalist political ideology (mir
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Needless to say, responsibility for
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those who believe in the democratic
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the exception discussed below. None
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independence or capacity to ensure
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einterpretation of its constitution
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issues from comparative experience
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PART I  The Theory and Practice
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In their recent comprehensive study
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in the process, destroy democracy.
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appointment of a dictator according
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dictator. 15 The dictator enjoyed a
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was the cultural and political etho
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siege is therefore a legal institut
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In Dicey’s view, the idea of mart
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diminish, the acknowledged prerogat
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Legislative Accommodation One of
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judges to resolve competing claims
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other vastly disparate contextual r
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than undermine, the rule of law in
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Carl  Schmitt:  Sovereign  Di
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Schmitt thought that, “…liberal
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The centrepiece of Schmitt’s mode
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exception has been declared by the
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CHAPTER III THE NEO‐ROMAN C
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3.1  Comparative  Experience:
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of emergency. It is true that the d
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emergency’. 87 The former remains
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legislation for the peace, order an
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the problem of deLinition plagues t
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to undertake, these jurisdictions m
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whereby each successive extension o
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may override ordinary statutes. As
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natural disasters, and a negative l
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However, the signiLicance of this p
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demonstrate this. 137 Other federat
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two classic constitutional devices
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may be curbed by the judiciary.”
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each department the necessary const
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normative expectations of the accom
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proved able, or indeed willing, to
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executive powers, and indeed tolera
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so clearly and blatantly transgress
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conLlict, but the character of the
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who use them to attack or undermine
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to the thoughts, feelings, and ener
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executive in favour of the latter,
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CHAPTER IV STANDARDS GOVERNING
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The past Live decades - the post Wo
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adaptation in human rights law of t
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interpreting these provisions. Subs
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interpreted this to mean “…a si
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were the result of an initiative by
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All three instruments contain a lis
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that it would “…take a State pa
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‘views’ are dependent on the at
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terms, but also that it provides fo
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incomplete reports. Perhaps unsurpr
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has also issued guidelines regardin
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advocacy role for its own views, wi
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The relevant State Party has an opp
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Nothing turns on the question wheth
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these rights. Derogation involves p
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ights under any circumstances, and
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population, to the territorial inte
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neither the ECHR nor the ACHR syste
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proclaimed a state of emergency. Th
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proportionate, in addition to confo
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elation to  the termination
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ut also the deeply conceptualised b
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Covenant (e.g., articles 6 and 7).
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Statute of the International Crimin
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derogability.  Even  in  time
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national security, and the protecti
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The Human Rights Committee has repe
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equires that States parties provide
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The only occasion in which the Huma
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would entail a breach of the State
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PART II  The Sri Lankan Experie
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CHAPTER V SRI  LANKA’S  CON
Page 176 and 177: emergency without having to look ov
Page 178 and 179: A state of emergency is brought int
Page 180 and 181: Chapter XVIII was predicated on the
Page 182 and 183: Regulations No. 1 of 2005 286 and E
Page 184 and 185: that of the person committing the a
Page 186 and 187: mens  rea  requirement for any
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Page 192 and 193: question whether executive law‐ma
Page 194 and 195: merits as well as the statement of
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Page 198 and 199: ecognised in Article 15 may be vali
Page 200 and 201: its underlying policy and motivatio
Page 202 and 203: Firstly, the problem of the deLinit
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Page 208 and 209: CHAPTER VI FUNDAMENTAL RIGHTS 6
Page 210 and 211: Permissible restrictions on these r
Page 212 and 213: 6.2.1 Structure and Content V
Page 214 and 215: eLlection of the high importance ac
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Page 218 and 219: Lilanthi  de Silva  v.  The
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Page 230 and 231: With regard to the Linding of uncon
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Page 236 and 237: CHAPTER VI CONCLUSION “…unsee
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Page 240 and 241: TABLE OF CASES A  Publication
Page 242 and 243: Nagamani  Theivendran  v.  Th
Page 244 and 245: PROCLAMATIONS  AND EMERGENCY 
Page 246 and 247: Yala National Park Regulation 7 of
Page 248 and 249: Establishment of a new Department o
Page 250 and 251: BIBLIOGRAPHY A Bruce Ackerman (2004
Page 252 and 253: J.A.L. Cooray (1995) Constitutional
Page 254 and 255: European Commission for Democracy t
Page 256 and 257: Oren Gross and Fionnuala Ní Aolái
Page 258 and 259: K Robert N. Kearney (1971) Trade 
Page 260 and 261: Herbert Marx (1970) ‘The  Emerg
Page 262 and 263: Eugene V. Rostow (1945) ‘The Ja
Page 264 and 265: UN Special Rapporteur on the Indepe
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